| Minn. | Jan 15, 1868
By the Court This action is brought by the plaintiff to recover damages for an alleged breach of a contract to transport and deliver certain flour. The contract is in the following words :
“ Saint Paul, May 6,1863.
“ We, Temple & Beaupre, of Saint Paul, Ramsey county, Minnesota, for the consideration of twenty-five dollars to us in hand paid, the receipt whereof is hereby acknowledged, have bargained, agreed and contracted with B. P. Pratt, of St. Peter, to receive at his mill in Saint Peter, county of Nicollet, State aforesaid, one thousand and four hundred barrels (1,400) of flour, and transport the same and deliver to Capt. M. P. Small, Commissary of Subsistence for the United States, on the levee in Saint Paul, at such time as he, the said Small, shall direct, for the sum of twenty-five cents
(Signed) Temple & Beaupre,'
Agents Steamer Flora.
B. F. Pratt.”
Tbe words “ agents steamer Flora,” attached to the signature of Temple Beaupre, are “ chsoriptio personarwmP The rule is, that when words which may be either descriptive of the person, or indicative of the character in which a person contracts, are affixed to the name of a contracting party, prima fade, they are descriptive of the person only; but tbe fact tbat they were not intended by the parties as descriptive of the person, but were understood as determining the character in which the party contracted, may be shown by extrinsic evidence; but tbe burden of proof rests upon the party seeking to change theprima facie character of the contract. And when a party who thus seeks to change theprima fade character of the contract, does so on the ground of agency in making the contract, the fact of his agency must be established; for if be acted as an agent without authority, he is personally liable. On the trial of this cause the only evidence was the deposition on the part of the plaintiff. The defendant offered no evidence. There is no evidence to establish the/aot of the agency of Temple & Beaupre. In the absence of evidence to prove tbat fact, those portions of the deposition of the plaintiff indicated by the letters A, B, 0, respectively, although under other circumstances they might be competent as evidence tending to show that the plaintiff contracted with them as agents, are not material. They were therefore properly stricken out. This' determines the only point raised by the defendant’s counsel. The judgment below is affirmed.